Probate Court: Understanding Inheritance and Equity Law

Probate court specializes in handling all matters governed by equity law. The main function of this special court is to oversee distribution of decedents' estates. However, probate court also presides over hundreds of legal issues including marriage, name changes, guardianship and adoption.

The first U.S. probate court was established in Massachusetts in 1784. The judiciary role of probate court is to oversee distribution of estate assets and enforce equity law. Probate court is also referred to as Court of Equity, Court of Ordinary, Surrogate Court and Orphans Court; although the latter is rarely used in today's society.

Equity law refers to orders which direct an individual to act or refrain from acting. Equity law is enforced by general guides known as 'maxims of equity', while court regulated laws pertain to doctrines or statutes.

Each individual state is governed by probate laws adopted by their state government. Therefore, the probate process varies between states. Nearly all require decedents' estates to be managed by a court appointed estate executor.

Estate administrators are usually designated within decedents' Last Will and Testament. If a person dies intestate (without a Will) the probate court will appoint someone to oversee the estate. In most cases, a family member is appointed as Administrator. If the decedent has no living relatives, the court can appoint an outsider to handle the estate. In most cases this is a probate lawyer or estate planner.

The probate executor is responsible for a variety of duties including taking inventory of assets, obtaining property appraisals, paying outstanding debts, and distributing assets to beneficiaries and heirs. Executors are compensated for their duties. Their fee can be paid at an hourly rate, flat fee or percentage of the estate value. Fees should be outlined within the last will.

Once the Administrator has performed necessary duties, they must appear in front of a probate judge to provide documentation and ensure the estate has been properly managed. The judge reviews the case and upon approval the estate executor can distribute inheritance assets to designated beneficiaries.

Managing an estate requires numerous man-hours. Inheritance assets are frequently held in probate for six to nine months. One way to avoid probate is to establish a revocable living trust or irrevocable life insurance trust.

Probate court is not limited to estate administration. It is also responsible for overseeing all cases which require enforcement of equity law. Other functions of probate court include establishing guardianship for minor children, adoptions, birth recordings, birth certificates, death certificates, name changes and marriage licenses. In essence, probate court address daily living (and dying) issues.

Lastly, probate courts oversee civil actions relating to probate. Common civil actions include contesting of the Will, determination of rightful heirs, and presumption of death. Civil actions are the only cases presented in probate court requiring a jury trial.


Real estate and probate liquidator, Simon Volkov, specializes in helping estate executors liquidate probate assets. Simon provides cash for inheritance to heirs who prefer to sell assets held in probate in exchange for a lump sum of cash. Simon offers a host of solutions to estate administrators and beneficiaries. Learn more about available options at www.SimonVolkov.com.